ABSTRACT
This chapter argues that assessments of judicial review’s democratic value have failed to consider judicial review in the context of contemporary democratic political systems. Both defenders of judicial review such as William Riker and popular constitutionalist critics such as Jeremy Waldron treat it as a much more exceptional institution than it is. They skip an important first step—before we can evaluate judicial review’s democratic value, we need a general set of criteria for the democratic evaluation of veto points. This chapter offers such an account, identifying five desiderata for a democratic veto point, which speak to that veto point’s propensity to promote transparency, public interest, deliberation, participation, and protection for minorities, respectively. We then offer a preliminary evaluation of judicial review on these five criteria. The results are mixed, but generally positive; judicial review appears to have the potential to be a relatively democratic veto point (while retaining significant democratic dangers).
